New Jersey Department of Labor Issues Guidance on COVID-19

The New Jersey Department of Labor Issued Guidance on COVID-19 and Benefits Employees May Access Under Different Scenarios

During these uncertain times public employers are asking how to respond to employees’ requests for information as to their job security, benefits and whether they will be paid should school district’s remain on a virtual education model and employees continue to work remotely or not at all during this unprecedented State of Emergency.

The DOL has created a helpful benefits chart for employers to reference. Employees may be entitled to Sick Leave (18A:30 and Paid Sick Leave), Unemployment Insurance, Temporary Disability/Family Leave, or Workers’ Compensation depending on the reason for absence from work. The chart may be viewed below or accessed through the DOL website at https://www.nj.gov/labor/assets/PDFs/COVID-19%20SCENARIOS.pdf

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Further guidance will be forthcoming as legislation progresses through the State and Federal Government.

1. A person who has COVID-19, or symptoms of COVID-19

If an individual has tested positive for COVID-19, or has symptoms of COVID-19 and is unable to work, he/she:

• Can use accrued Earned Sick Leave: As of October 2018, employers of all sizes must provide full-time, part-time, and temporary employees with up to 40 hours of earned sick leave per year so they can care for themselves or a loved one.

If an employee uses up their Earned Sick Leave and still cannot return to work, they may apply for one of the following programs, depending on their situation and eligibility:

• Can apply for Temporary Disability Insurance (TDI): A claim would need to be filed online at myleavebenefits.nj.gov; the health care provider would give the diagnosis and the duration the individual is expected to be out of work. Available wage records on file would determine the amount of TDI benefits. It is against the law for employers to retaliate against employees for taking or seeking to take TDI benefits. In addition, some NJ workers are eligible for job-protected medical leave under the Federal Family and Medical Leave Act (FMLA). 
• May be eligible for Workers’ Compensation: If a person contracts the virus because he/she waited on or worked with someone who had the virus, or contracted the virus for any other work related reason, that person could be eligible for workers’ compensation.

2. A person who was exposed to coronavirus during the course of their work and has now been told to self-quarantine (healthcare workers, wait staff, retail, teachers, etc.)

• May be able to use accrued Earned Sick Leave The Earned Sick Leave law states, in part: “Time during which the employee is not able to work…because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.”
• May be eligible for Workers’ Compensation: If a person is directed to self-quarantine by their employer or a public health official following known exposure to the virus during the course of their work, that person could be eligible for workers’ compensation.

3. A person who is unable to work because their child’s school or daycare was ordered closed by a public official for a public health reason

Can use accrued Earned Sick Leave: A school or childcare closure for cleaning or other coronavirus preparation would be considered an allowable use of Earned Sick Leave.

The Earned Sick Leave law states, in part: “Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.”

4. A person who is out of work because their employer voluntarily closed (temporarily or otherwise) because of COVID-19

Could be eligible for Unemployment Insurance benefits (UI):  A claim would need to be filed at myunemployment.nj.gov, preferably online, and benefits amount would be determined through available wage records. This claim would initially be considered a temporary layoff, thus suspending the provision that the worker be able, available and actively seeking work. As of now, a layoff lasting longer than eight weeks would require the person to be able, available and actively looking for employment.

5. A person who is unable to work because their place of business was ordered closed by a public official for a public health reason

• Can use accrued Earned Sick Leave: The Earned Sick Leave law states, in part: “Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.”
• If an employee uses up their Earned Sick Leave and cannot return to work, they may apply for Unemployment Insurance benefits (UI): A claim would need to be filed at myunemployment.nj.gov, preferably online, and the benefit amount would be determined through available wage records. This claim would initially be considered a temporary layoff, thus suspending the provision that the worker be able, available and actively seeking work. As of now, a layoff lasting longer than eight weeks would require the person to be able, available and actively looking for employment. If, however, the individual subsequently contracts the virus, then the claim would be switched over to Disability During Unemployment.

6. A person who refuses to go to work because although their place of business was ordered closed by a public official for a public health reason

Can use accrued Earned Sick Leave: The Earned Sick Leave law states, in part: “Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.”

7. A person who is losing hours because of a reduction in force related to COVID-19

Could be eligible for partial Unemployment Insurance (UI) benefits: If a person is still employed, but the regular hours of work have been reduced, depending on the number of hours that have been reduced and the amount of earning for the week, the person would be eligible for reduced UI benefits. To be eligible for partial unemployment benefits, the person cannot work more that 80% of the hours normally worked. 

For example, if a person normally works 40 hours a week, they cannot work more than 32 hours in a week to be eligible. Additionally, if the person earns 20% or less of their weekly benefit rate, the person would receive the full weekly benefit. For earnings greater than the 20%, the weekly benefit would be reduced.

8. A person who does not go to work because their healthcare provider says they are at greater risk due to a pre-existing health condition

• Can use accrued Earned Sick Leave:The Earned Sick Leave law states, in part, the permitted use of self-care: “Time needed for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury, or other adverse health condition, or for preventative medical care for the employee;” and, the permitted use to protect public health: “because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.”
  

9. A person who is told to self-quarantine due to virus exposure

Can use accrued Earned Sick Leave: The Earned Sick Leave law states, in part, the permitted use of self-care: “Time needed for diagnosis, care, or treatment of, or recovery from, an employee’s mental or physical illness, injury, or other adverse health condition, or for preventative medical care for the employee;” and, the permitted use to protect public health: “because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee’s family in need of care by the employee, would jeopardize the health of others.”

10. A person who has to care for a relative or loved one with the coronavirus or symptoms of COVID-19

• Can use accrued Earned Sick Leave: The Earned Sick Leave law states in part, “time needed for the employee to aid or care for a family member of the employee during diagnosis, care, or treatment of, or recovery from, the family member’s mental or physical illness or other adverse health condition, or during preventive medical care for the family member.”
• If an employee uses up their Earned Sick Leave and still cannot return to work, they may apply for Family Leave Insurance: If caring for a family member who has the coronavirus or symptoms of COVID-19, a claim would need to be filed at myleavebenefits.nj.gov and the family member’s health care provider would give the diagnosis and the expected length of time the caregiver will need to be out of work. Available wage records would determine the amount of benefits. It is against the law for employers to retaliate against employees for taking or seeking to take Family Leave benefits. In addition, many NJ workers are eligible for job-protected family leave under the NJ Family Leave Act (NJFLA).

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.